1. GeneralCURBELL PLASTICS, INC. ("Buyer") and the person or entity to whom Buyer's purchase order or purchase contract (each, an "Order") is addressed ("Seller") are collectively referred to herein as the "Parties". All purchases by Buyer from Seller are expressly conditioned on Seller's acceptance of these General Terms and Conditions of Purchase (the "Terms and Conditions"). Seller agrees that the first to occur of the following clauses (a) though (d) will conclusively constitute Seller's acceptance of these Terms and Conditions:
(a) Seller accepts or fails within five days of receipt to object in writing to any of Buyer's instructions for specifications, delivery, shipping or billing with respect to any of t he products covered by the Order,
(b) Seller delivers any products covered by the Order,
(c) Seller executes the Order or
(d) the passage of five days after Buyer first delivers the Order to Seller and Seller fails to deliver written notice to Buyer that Seller objects to these Terms and Conditions.
Issuance of an Order does not represent acceptance of any terms or conditions previously specified by Seller in any quotation or otherwise. Any purchase order acknowledgement, invoice, quotation or other communication from Seller that contains terms or conditions in addition to or inconsistent with these Terms and Conditions will not apply to the purchase of any products under the Order or be used to waive, modify, vary, explain, amend or supplement all or any part of these Terms and Conditions and are hereby objected to by Buyer, unless acceptance of those Terms and Conditions is made in writing by an authorized officer of Buyer.
2. PricesSeller's prices for products will be as specified in each Order.
3. Delivery; Risk of Loss; TitleTime is of the essence in the shipment and delivery of Seller's products under the Order. If Seller fails to deliver any product within the time specified in the Order, Buyer may, in addition to all other rights it may have under applicable law, decline to accept the products, terminate the Order in whole or in part and terminate any other then outstanding Order. Seller will not make delivery earlier than the date or dates shown on the Order or in installments or partial deliveries without the prior written consent of Buyer. If products are delivered in advance of a scheduled delivery date, Buyer may return them or store them, in either case at Seller's expense. Seller will promptly notify Buyer whenever Seller is not able to deliver the quantities specified on the date or dates specified; provided, however, that such notice will be informational only and its receipt by Buyer will not be construed as a waiver by Buyer of any delivery schedule or designated delivery date or any rights or remedies provided to Buyer by these Terms and Conditions or applicable law. Acceptance by Buyer of late deliveries will not relieve Seller of the obligation to make future deliveries on schedule. In the event shipping instructions are not provided, the applicable shipping terms shall be FCA, Origin, Freight Collect, using Buyer specified carriers. Except as expressly provided in the Order, packing, handling, loading, and assembling are included in the purchase price set forth in the Order and Buyer will not be charged any additional amounts for such services.
4. Packing and ShippingThe Order number must be plainly marked on the outside of each package and on all invoices, packages, bills of lading and shipping orders. Shipping memoranda or packing lists must accompany all products and bills of lading or shipping receipts must accompany each invoice for products sold. Buyer's count or weight will be conclusive on all shipments. All products will be packaged by Seller at Seller's expense to meet the carrier's requirements and so as to insure safe arrival at their ultimate destination.
5. Inspection and ClaimsBuyer reserves the right to reject defective or non-conforming products delivered under each Order. Any payment for such products or any delay in inspecting them, testing them, giving notice of rejection or returning them will not constitute acceptance of such products. Products received will not be accepted until after Buyer has tested them for defect and non-conformity. Products rejected by Buyer will be returned or stored by Buyer at Seller's expense. Buyer will inspect products delivered under the Order for obvious damage, defect or shortage upon receipt and will notify Seller of any such damage, defect or shortage identified by Buyer within a reasonable time. If any such products are found to be defective in material or workmanship or otherwise not in conformity with the requirements of the Order, Buyer, in addition to any other rights which it may have under applicable law, will have the right, at its option:
(a) to reject and return such products at Seller's expense, in which event such products will not be replaced by Seller without prior written authorization from Buyer or
(b) upon notice to Seller, to take such actions as may be required to cure all defects and/or bring the products into conformity with all of the requirements of the Order, in which event all costs and expenses thereby incurred by Buyer will be for Seller's account.
Any and all expenses incurred by Buyer in the exercise of its rights under this clause will be promptly reimbursed by Seller.
6. Force MajeureBuyer will not be liable for any delay or failure in performance of any obligation to Seller or to any third party or for any damages or losses suffered by Seller or any third party which are caused by, or in any manner arises from, directly or indirectly, any labor disturbances, embargos, riots, storms, fires, explosions, acts of God or public enemies, inability to obtain products from a supplier, accidents or breakdown to, or mechanical failure of, machinery or equipment, changes in economic conditions, delays or interruptions in transportation, or any other causes beyond Buyer's control or the control of any of Buyer's customers. Upon any such delay or failure, Buyer may, in its sole discretion and without any liability to Seller or to any third party, delay or partially perform its obligations to Seller, cancel any Order in whole or in part or at its expense and risk return any products received under the Order to the place of shipment.
7. WarrantiesIn addition to all warranties provided or implied by law, Seller expressly warrants to Buyer and its customers that all products furnished under the Order will:
(a) be free of all liens, claims or encumbrances in favor of Seller or third parties,
(b) be merchantable and fit for their intended purposes,
(c) free from defects in design, manufacturing, workmanship and materials and
(d) conform to all specifications, approved samples or other descriptions furnished to Seller or otherwise agreed to by Buyer.
Such warranties will run to Buyer and its successors and assigns, to Buyer's customers and to any end -users of the products sold under the Order, and such warranties will survive the inspection, delivery and acceptance of, and any payment for, such products by Buyer.
8. Limitation of Liability; Exclusion of DamagesOther than the payment of the purchase price for products which is validly due to Seller in accordance with the terms of the Order and these Terms and Conditions, Buyer will have no liability with respect to any claim by Seller or any third party arising out of or in any way relating to any product sold by Seller to Buyer under an Order. BUYER WILL NOT BE LIABLE TO SELLER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, LOST PROFITS OR OTHER LOSSES OF SELLER OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY RELATING TO THE SALE, ASSEMBLY, INSTALLATION, TESTING, USE OR TRANSPORTATION OF, OR OTHERWISE IN CONNECTION WITH, ANY PRODUCT PURCHASED UNDER AN ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9. Statute of Limitations; Compliance with LawsAny action of any nature by Seller against Buyer must be commenced by Seller within one year after the cause of action first accrued. In furnishing products under each Order, Seller represents that Seller is currently in compliance and will continue to be in compliance with all applicable laws (including, but not limited to, compliance with all applicable export laws and the obtaining of all required licenses and other required documentation) and will indemnify and hold harmless and, at Buyer's request, defend the Buyer Indemnified Parties from and against any and all liabilities, damages, costs and expenses which any of t hem may suffer or incur on account of Seller's failure to comply with any such law.
10. InsuranceSeller shall be solely responsible for maintaining and requiring Seller's agents to maintain such adequate health, auto, worker's compensation, unemployment compensation, disability, employer's liability, and other insurance, as is required by law or as is the common practice in Seller's and Seller's agents' trades or businesses. Seller must maintain and require Seller's agents to maintain products liability insurance with respect to any products sold under any Order with policy limits not less than $1,000,000 per occurrence and $1,000,000 in the aggregate. Seller shall provide Buyer with certificates of insurance or evidence of coverage before commencing performance under this Agreement if requested.
11. Costs and Expenses; IndemnificationSeller will be responsible for all costs and expenses, including, but not limited to, attorneys' fees and disbursements, incurred by Buyer in enforcing any term or condition herein and Seller will indemnify and promptly reimburse Buyer for such costs and expenses. Seller agrees to indemnify, hold harmless and, at Buyer's request, defend the Buyer Indemnified Parties from all costs, expenses and losses incurred by any of them which relate to or arise out of any defect in the products sold under the Order, Seller's default or breach of any of these Terms and Conditions or its representations and warranties made herein, any action or omission by Seller or Seller's agents or employees or any claim by a third party against Buyer alleging that the products sold under this Order infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party.
12. ChangesBuyer may by written notice at any time prior to shipment, make changes to any Order concerning specifications, method of shipment or packing, quantities and place or time of delivery. To the extent any such change causes an increase or decrease in the cost of or time required for performance of the Order, an appropriate equitable adjustment will be made by Buyer. Any claim by Seller for adjustment must be asserted in writing within fifteen days from receipt of the change. Seller will furnish such documentary evidence as Buyer may reasonably request substantiating the proposed adjustment. Failure to agree to an adjustment will not excuse Seller from proceeding with the Order as changed.
13. Governing Law; Jurisdiction; VenueEach Order, these Terms and Conditions and any other document delivered by Buyer to Seller or between the Parties will be governed by and construed according to the laws of the State of New York, without reference to the principles of conflicts of law. All rights and remedies of Buyer, whether expressly provided by these Terms and Conditions or by applicable law, will be cumulative and nonexclusive and may be exercised singly or concurrently. Damages recoverable by Buyer under these Terms and Conditions will include all losses of every kind and nature including, but not limited to, lost profits, special, direct, indirect and consequential damages. Each of the Parties hereby irrevocably and unconditionally:
(a) consents to submit to the exclusive jurisdiction of the United States District Court for the Western District of New York or the applicable state court located in the State of New York, County of Erie, for any action or proceeding arising out of or relating to the sale of Seller's products to Buyer,
(b) waives any objection to the laying of venue of any such action or proceeding in such courts and
(c) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.